Hot Topics:

Opinion: Editorials

Editorial: Amendment 74's potential for damage is enormous

Posted:
09/22/2018 06:04:53 PM MDT

Updated:
10/02/2018 02:28:02 PM MDT

Lauren Swain in downtown Denver in July asks for petition signatures for an initiative that would become Proposition 112. Proposed Amendment 74 is seen as an oil and gas industry response to Proposition 112. (Hyoung Chang / The Denver Post)

If Colorado voters do one thing in November's election, they should defeat Amendment 74.

Proponents cast the amendment as a simple improvement of state law that would defend private property owners from big, bad government. But the scope of the proposed change is boundless, and its potential for damage to basic government functions is enormous. Sponsored by the Colorado Farm Bureau, the measure was in fact bankrolled by oil and gas interests, and the effort to get it passed gushes with mendacity.

On the surface, the proposal sure is simple. It would add a mere 11 words to Article II, Section 15 — the "takings" section — of the Colorado Constitution. The passage would read, "Private property shall not be taken, or damaged, or reduced in fair market value by government law or regulation for public or private use, without just compensation."

If the addition of the provision for reductions of "fair market value" at first glance seems reasonable, consider the implications. Any time a city or county tries to regulate any land use, it could expose itself to a lawsuit. Any time a government seeks to enforce zoning laws or pursue affordable housing initiatives or get behind an urban renewal project, a private property owner could seek damages in court.

Advertisement

"Just about any municipal action could result in a lawsuit. Any inaction could as well, if the effect is even the slightest drop in an individual property's 'fair market value,''' states a memo about the measure from the Colorado Municipal League. "This measure will cripple local budgets through both increased legal costs and payouts to individual property owners. Any decision by a government body would be vulnerable to lawsuits, with the cost borne by taxpayers."

Mike Foote, who represents Colorado House District 12 (Louisville, Lafayette, and parts of Longmont), in a recent op-ed in the Camera called the amendment "one of the most dangerous ballot measures we have seen in Colorado for a long time." He illustrated the legal free-for-all the amendment could kick off with the following hypothetical: "If a developer wants to build something taller than the current local ordinance allows, that company will hire a lawyer to sue the city, claiming a reduction in property value and will likely succeed. But wait, it gets better. Neighbors who like the existing height restriction will also hire a lawyer to sue the city because taller buildings affect their views of the mountains and reduce their property values. Those neighbors will also succeed."

Who ends up paying the legal bill? Taxpayers.

In fact, we don't need to consider hypotheticals to grasp this measure's dreadful outcomes. In 2004, voters in Oregon passed Measure 37, which is similar to Amendment 74. Thousands of takings claims piled up, amounting to billions of dollars in costs, according to a Colorado Municipal League analysis. Buyer's remorse set it almost immediately, and voters in the state repealed the measure after only three years. Measure 37 had exceptions, such as for public health and safety regulations, which are absent from Amendment 74, meaning Colorado's experience would be even more disastrous than Oregon's.

Amendment 74's proponents defend it in language that implies it is a necessary protection for everyday folk. It "finds common ground across all party affiliations and unites both rural and urban Colorado communities to safeguard private property from government overreach," Colorado Farm Bureau's Shawn Martini wrote in Colorado Politics. The Bureau's executive vice president, Chad Vorthmann, believes — or gives the impression that he believes — dire warnings about the amendment are overblown. "It makes me think those in charge of our government either don't understand all the (takings) case law or are being blatantly misleading," he was quoted as saying in the Colorado Springs Gazette. "Courts have taken a narrow view of takings legislation."

Such reassurances might be credible were it not for the true genesis of Amendment 74. The measure is the product of massive spending by the oil and gas industry. The issue group Protect Colorado, funded by companies Anadarko Petroleum, Extraction Oil & Gas, Noble Energy and others, has raised millions of dollars this year, and much of that money backs the measure. Amendment 74 is part of a cynical campaign in the fossil fuel industry's multifront attack against authentic citizen efforts to protect themselves from industry activities. Also on the ballot is Proposition 112, which if passed would increase the state's oil and gas well setbacks to 2,500 feet, meaning drilling operations would have to be farther away from homes, schools and other sensitive areas.

Industry advocates denounce Proposition 112 itself. But if both the setback measure and Amendment 74 pass, oil and gas companies could make legal claims that the new setbacks decreased the value of the minerals they own. "The state would be on the hook for perceived losses by oil and gas developers and drillers if the setbacks prevent access to deposits," Colorado Public Radio reported.

It's bad enough that out-of-state corporations have muscled their way onto the Colorado ballot with a measure that would disfigure the state's Constitution for the sake of profits. But, even if the measure were honestly conceived, it would in practice cause untold disruptions to essential government responsibilities. If Colorado voters do nothing else in November's election, they should unequivocally say no to Amendment 74.

The Boulder alt-country band gives its EPs names such as Death and Resurrection, and its songs bear the mark of hard truths and sin. But the punk energy behind the playing, and the sense that it's all in good fun, make it OK to dance to a song like "Death." Full Story